Russell v. Lynn , 8 Ky. Op. 192 ( 1874 )

Opinion by

Judge Peters :

To the instruction given to the jury no objection was made and no exception taken by appellant, and this court can not on that account review the action of the court below, giving said instruction, even if it were erroneous, as the error was waived by failing to except to it at the time. No citation of authority is necessary on this point. Nor was there any exception taken to the opinion of the court in admitting the evidence of the Rusts to go to the jury and that question was waived.

But the verdict of the jury is against the .decided weight of the evidence.

In actions ex contractu, when the evidence preponderates so decisively against the verdict as it does in this case, a new trial should be awarded. Kirtley v. Kirtley, 1 J. J. Marsh. 96.

Wherefore the judgment is reversed and the cause is remanded for a new trial and further proceedings consistent herewith.